U.S. Supreme Court hears arguments on how far it should extend for prosecutors
Pennsylvania Law Weekly
March 14, 2010
On March 2, the U.S. Supreme Court heard oral arguments in the matter of Abdullah al-Kidd's lawsuit against former U.S. Attorney General John Ashcroft and whether that lawsuit should be allowed to continue.
Al-Kidd, an American citizen who converted to Islam while in college, was arrested and detained in the wake of the 9/11 terrorism threat. His arrest was pursuant to a material witness warrant, a process intended to make sure witnesses appear to testify at criminal proceedings.
The issue before the Supreme Court is whether there should be some restrictions on absolute immunity for prosecutors when performing a prosecutorial functions and whether taking a material witness into custody, even as a pretext for investigating the detained witness, is a protected prosecutorial function.
The law is settled on the issue of protected prosecutorial functions.
Absolute immunity protects prosecutors from liability whenever they are performing the traditional functions of an advocate or are engaged in acts that are intimately associated with the prosecutorial functions of the criminal process. Absolute immunity extends not only to the decision to initiate a prosecution by filing charges, but also to any duties of the prosecutor in his role as advocate.
The Supreme Court has acknowledged that absolute immunity may have significant consequences for some aggrieved parties.
For instance, the court acknowledged in the 1976 case Imbler v. Pachtman that absolute immunity may "leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." The court expressed agreement with 2nd U.S. Circuit Court of Appeals Chief Judge Learned Hand, who observed in the 1949 decision Gregoire v. Biddle that it is "in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."
During the recent argument, an exchange between Ashcroft's attorney, Acting Solicitor General Neal Katyal, and Justice Sonia Sotomayor signaled the government's position: Exposure to civil law suits will have a chilling effect on prosecutors.
Katyal argued, "[There is] no doubt that certain individuals will be harmed, but the cost of rooting out the bad apples through damages lawsuits is far worse, that it causes prosecutors to flinch in the performance of their duties."
Sotomayor questioned Katyal's position, saying, "If you take the point that you're raising, then prosecutors can out of spite, out of pure investigative reasoning, out of whatever motive they have, just lock people up."
"You don't think there's a reason to make prosecutors flinch against willy-nilly" [detentions], she later asked.
Katyal responded: "Making prosecutors flinch is always a bad thing.'
In terms of tough questions, that was about it for the government during the legal argument.
According to Adam Liptak of The New York Times , the current members of the Supreme Court are considered to be a part of a "hot bench." Attorneys who come before this court should expect to be confronted with a host of challenging questions. The fact that the justices asked few questions of the government's attorney is telling. Liptak wrote that "the justices' lack of engagement at the argument probably signaled a victory for the government."
This lawsuit has its origins in the government's action immediately after 9/11.
Ashcroft and other high-ranking officials publicly described the importance of using the material witness process against suspected terrorists — including U.S. citizens. Less than two months after 9/11, according to the Associated Press , Ashcroft said that the "aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks."
Al-Kidd contends that he was not detained because he had information about terrorism. Instead, he says, he was detained as part of a plan approved by Ashcroft to sweep up Muslim men the government suspected, but could not prove, had ties to terrorism.
The 9th U.S. Circuit Court of Appeals said the lawsuit could proceed.
According to the Washington Post, attorney Lee Gelernt, who is representing al-Kidd, said his client should be permitted to proceed with his claim that Ashcroft had a policy of misusing the material witness process.
Gelernt contends that Ashcroft is not entitled to absolute immunity for three reasons.
First, seeking a material witness warrant is not a core prosecutorial function; second, the warrant was to investigate al-Kidd himself, therefore a police function not protected by absolute immunity; third, the affidavit to seek the warrant prepared by the FBI at the direction of the attorney general is not protected by absolute immunity.
Katyal has argued that seeking and obtaining a material-witness warrant is a core 6"prosecutorial function, and that a prosecutor is absolutely immune from any claims based on that function. A prosecutor's decision that the testimony of a particular witness is necessary to an ongoing criminal proceeding falls squarely within the prosecutor's "traditional functions as an advocate," which includes deciding "which witnesses to call," according to Katyal.
The Supreme Court has found that absolute immunity protects prosecutors from liability when performing the following duties: the professional evaluation of evidence collected by the police; appropriate presentation of evidence at trial; whether to present a case to the grand jury; when to prosecute a case; when to dismiss a case; what evidence to present; and, most importantly in this case, which witnesses to call.
Al-Kidd's attorney suggested that his client should be allowed to prove that Ashcroft had a policy of misusing the material witness process.
But if determining which witnesses to call is a core prosecutorial function, then Ashcroft's motive in seeking material witness warrants is of no consequence.
The "functional" test for absolute immunity is an objective one. It does not matter what the attorney general's subjective motive was in seeking a material witness warrant, the motive is irrelevant even if Ashcroft were acting in bad faith, he is still immune from suit. The Supreme Court has ruled that anything other than an objective standard would effectively defeat absolute immunity.
Al-Kidd's claim may cause some to pause and ask how an innocent American citizen can be detained for two weeks without being charged. Unfortunately, when the Supreme Court renders a decision in this case, it will not provide an answer to that question. More than likely, the Supreme Court's decision will foreclose al-Kidd from ever getting an answer.
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